AMENDMENT NO. 4
TO AMENDED AND RESTATED
WAREHOUSING CREDIT AGREEMENT
(TEC AcquiSub, Inc.)
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED WAREHOUSING CREDIT
AGREEMENT dated as of November 3, 1997 (the "Amendment"), is entered into by and
among TEC ACQUISUB, INC., a California special purpose corporation ("Borrower"),
FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("FUNB") and each other financial
institution which may hereafter execute and deliver an instrument of assignment
pursuant to Section 11.10 of the Credit Agreement (as defined below) (any one
financial institution individually, a "Lender," and collectively, "Lenders"),
and FUNB, as agent on behalf of Lenders (not in its individual capacity, but
solely as agent, "Agent"). Capitalized terms used herein without definition
shall have the same meanings herein as given to them in the Credit Agreement.
RECITALS
A. Borrower, Lenders and Agent have entered into that Amended and
Restated Warehousing Credit Agreement dated as of September 27, 1995, as amended
by that Amendment No. 1 to Amended and Restated Credit Agreement dated as of May
31, 1996, that Amendment No. 2 to Amended and Restated Credit Agreement dated as
of November 5, 1996 and that Amendment No. 3 to Amended and Restated Credit
Agreement dated as of October 3, 1997 (as so amended, the "Credit Agreement"),
pursuant to which Lenders have agreed to extend and make available to Borrower
certain advances of money.
B. Borrowers desire that Lenders and Agent amend the Credit Agreement
to (i) extend the Commitment Termination Date from November 3, 1997 to December
2, 1997 and (ii) reduce the Commitments set forth on Schedule A to the Credit
Agreement from $50,000,000 to $35,000,000.
C. Subject to the representations and warranties of Borrower and upon
the terms and conditions set forth in this Amendment, Lenders and Agent are
willing to so amend the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and
intending to be legally bound, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
1.1 Commitment. The definition of "Commitment" set
forth in Section 1.1 of the Credit Agreement is amended by deleting Schedule A
in its entirety and replacing such schedule with a new Schedule A in the form
attached to this Amendment as Attachment I.
1.2 Commitment Termination Date. The definition of
"Commitment Termination Date" set forth in Section 1.1 of the Credit Agreement
is deleted and replaced with the following:
"Commitment Termination Date" means December 2, 1997.
2. LIMITATIONS ON AMENDMENTS.
(a) The amendments set forth in Section 1, above, are
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (i) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document or (ii)
otherwise prejudice any right or remedy which Lenders or Agent may now have or
may have in the future under or in connection with any Loan Document.
(b) This Amendment shall be construed in connection with and
as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein waived or amended, are hereby ratified and confirmed and shall remain in
full force and effect.
3. REPRESENTATIONS AND WARRANTIES. In order to induce Lenders and Agent
to enter into this Amendment, Borrower represents and warrants to each Lender
and Agent as follows:
(a) Immediately after giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents (other than those
which expressly speak as of a different date) are true, accurate and complete in
all material respects as of the date hereof and (ii) no Default or Event of
Default, or event which constitutes a Potential Event of Default, has occurred
and is continuing;
(b) Borrower has the corporate power and authority to execute
and deliver this Amendment and to perform its Obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party;
(c) The articles of incorporation, bylaws and other
organizational documents of Borrower delivered to each Lender as a condition
precedent to the effectiveness of the Credit Agreement are true, accurate and
complete and have not been amended, supplemented or restated and are and
continue to be in full force and effect;
(d) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its Obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party have been duly authorized by all necessary corporate action on the
part of Borrower;
(e) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its respective Obligations under the Credit
Agreement, as amended by this Amendment, and each of the other Loan Documents to
which it is a party do not and will not contravene (i) any law or regulation
binding on or affecting Borrower, (ii) the articles of incorporation, bylaws, or
other organizational documents of Borrower, (iii) any order, judgment or decree
of any court or other governmental or public body or authority, or subdivision
thereof, binding on Borrower or (iv) any contractual restriction binding on or
affecting Borrower;
(f) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its Obligations under the Credit Agreement,
as amended by this Amendment, and each of the other Loan Documents to which it
is a party do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
Borrower, except as already has been obtained or made; and
(g) This Amendment has been duly executed and delivered by
Borrower and is the binding Obligation of Borrower, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
SECTION 4. REAFFIRMATION. Borrower hereby reaffirms its Obligations
under each Loan Document to which it is a party.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective upon
the last to occur of:
(a) The execution and delivery of this Amendment, whether the
same or different copies, by each of Borrower, Lenders and Agent.
(b) The execution and delivery of the Acknowledgment of
Amendment and Reaffirmation of Guaranty attached to this Amendment, by PLMI.
(c) The execution and delivery of an Assignment and Acceptance
by each of Fleet Bank, N.A., as an Assignor Lender, FUNB, as an Assignee Lender,
Borrowers and Agent, pursuant to which Fleet Bank, N.A. shall have assigned to
FUNB all of its Commitments under the Credit Agreement, which assignment shall
have been effected.
(d) Satisfaction, to the approval of Lenders and Agent, of all
conditions precedent to the effectiveness of Amendment No. 3 to Second Amended
and Restated Warehousing Credit Agreement dated as of the date hereof by and
among the Growth Funds, FSI, Lenders and Agent.
(e) Satisfaction, to the approval of Lenders and Agent, of all
conditions precedent to the effectiveness of Amendment No. 3 to Warehousing
Credit Agreement dated as of the date hereof by and among AFG, Lenders and
Agent.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
SECTION 0.XXXXXX, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF. BORROWER
HEREBY REPRESENTS AND WARRANTS TO AGENT AND EACH LENDER THAT IT HAS NO KNOWLEDGE
OF ANY FACTS THAT WOULD SUPPORT A CLAIM, COUNTERCLAIM, DEFENSE OR RIGHT OF
SET-OFF.
SECTION 8. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, and by different parties hereto in separate counterparts, with the
same effect as if the signatures to each such counterpart were upon a single
instrument. All counterparts shall be deemed an original of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BORROWER TEC ACQUISUB, INC.
By:
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
LENDERS FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
Printed Name:
Title:
AGENT FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Agent
By:
Printed Name:
Title:
156218 v1/SF
3cj#01!.DOC
ATTACHMENT I
[Revised Schedule A]
SCHEDULE A
COMMITMENTS
LENDER COMMITMENT PRO RATA SHARE
First Union National Bank $35,000,000 35/35 x 100%
of North Carolina
ACKNOWLEDGEMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTY
(PLMI/Tec AcquiSub)
SECTION 1. PLM International, Inc. ("PLMI") hereby acknowledges and
confirms that it has reviewed and approved the terms and conditions of this
Amendment No. 4 to Amended and Restated Warehousing Credit Agreement
("Amendment").
SECTION 2. PLMI hereby consents to this Amendment and agrees that its
Guaranty of the Obligations of Borrower under the Credit Agreement shall
continue in full force and effect, shall be valid and enforceable and shall not
be impaired or otherwise affected by the execution of this Amendment or any
other document or instrument delivered in connection herewith.
SECTION 3. PLMI represents and warrants that, after giving effect to
this Amendment, all representations and warranties contained in its Guaranty are
true, accurate and complete as if made the date hereof.
GUARANTOR PLM INTERNATIONAL, INC.
By
J. Xxxxxxx Xxxxxxx
Chief Financial Officer
